1. ' MUHAMMAD ROSHAN ESSANI, J.--- By this petition under Article 199 of the Islamic Republic of Pakistan 1973, the petitioner Mst. Naseema Begum has sought the following reliefs:--- "(i) The petitioner therefore, prays that this Hon'ble Court may be pleased to issue a writ staying the execution of death sentence of Shah Jahan son of Shafiuddin, scheduled by the respondents to be executed in Central Prison, Karachi on 6-8-2002, ,in Crime No,449 of 1998 under sections 302/324/34, P.P.C., Police Station Gulshan-e-lqbal, Karachi, until final disposal of mercy petition of the petitioner pending before the President of Pakistan.
(ii) Any other relief deemed just and proper."
2. ' The brief facts of the case are that in the month of July, 1999, Shahjahan son of Shafiuddin who is husband of the petitioner had been tried by the Court of 3rd Special Judge of Anti-Terrorism Court, Karachi in Special Case No, 252 of 1999, which arose out of F.I.R. No,449 of 1998 registered under sections 302 and 324 read with section 34, P.P.C. He was convicted and sentenced to death under sections 302(a) and 324, P.P.C. By judgment, dated 2-8-1999.
3. ' The condemned prisoner Shahjahan preferred Special Criminal , Appeal bearing No,117 of 1999 which was dismissed by this Court on 23-12-1999. The sentence of Qisas awarded to him under section 302(a), P.P.C. Was, however, altered to sentence of death as `Ta'zie under section 302(b), P.P.C. The condemned prisoner preferred appeal before the Honourable Supreme Court of Pakistan being Criminal Appeal No,K-1 of 2000 which was also dismissed on 14-6-2000, The accused filed review application from Jail but it also met the same fate. Subsequently condemned prisoner Shahjahan submitted mercy petition before the President of Pakistan through Superintendent, Central Prison, Karachi in October, 2001. The said mercy petition was also dismissed by the President of Pakistan in October, 2061. In the last week of December, 2001 black warrant for the execution of sentence of death awarded to condemned prisoner Shahjahan was issued by the trial Court. The date for the execution of his death sentence was fixed for 29-4-2002.
4. ' The petitioner submitted an application before the President of Pakistan .For commutation of the death sentence of her husband. On the application of petitioner, the President of Pakistan suspended/stayed the execution of death sentence for a period of four weeks which was subsequently extended for two weeks and thereafter again for 6 weeks which period expired on 27- 7-2002.
5. ' We have heard the learned counsel appearing on behalf of the petitioner.
6. ' It is contended by the learned counsel that the case of prosecution is that T.T. Pistol which was used in the commission of offence on 22-5-1998 had been recovered, from the possession of condemned prisoner on 20-7-1998 and a case under section 13-D, Arms Ordinance was registered against him through F.I.R. No 642 of 1998, dated 20-7-1998 at Police Station Gulshan-e-Iqbal, Karachi. The recovery of unlicensed T.T. Pistol from the possession of condemned prisoner was believed by the Courts. However the condemned prisoner was subsequently acquitted by Judicial Magistrate in the said case under section 13-D, Arms Ordinance It was further contended by the learned counsel that the application moved by the petitioner before the President of Pakistan has not attained finality. He, therefore, urged that the execution of death sentence of condemned prisoner be stayed. The learned counsel has placed reliance on the case of Amir Bux v. Secretary- General, Ministry of Interior, Government of Pakistan, reported in 1984 PCr.LJ 1741 and the case of Amir Bux v. Secretary-General, Ministry of Interior Government of Pakistan reported in PLD 1985 Kar.
7. 610.
8. ' We have given our anxious consideration to the arguments of the learned counsel appearing on behalf of the petitioner.
9. ' The contentions that the condemned prisoner was acquitted by Judicial Magistrate in case under section 13-D of Arms Ordinance and as such the main case requires reappraisal of evidence in the light of the authorities cited above and that it was a fit case for direction to be issued for the stay of execution of sentence is misconceived.
10. ' The perusal of material placed on record shows that the appeal of condemned prisoner was dismissed by Honourable Supreme Court of Pakistan. This Court cannot sit over the decision of the apex Court in exercise of powers conferred upon it under Article 199 of the Constitution of Islamic Republic of Pakistan. The authorities relied upon by the learned counsel appearing on behalf of the petitioner in case of Amir Bux v. Secretary-General, Ministry of Interior, 1984 PCr.LJ 1741 and Amir Bukhsh v. The Secretary-General, Ministry of Interior, Government of Pakistan reported in PLD 1985 Kar. 610 are distinguishable from the facts and circumstances of the present case.
11. ' In the case reported in 1984 PCr.LJ 1741 the parties had compromised and blood money was paid by the condemned prisoner Amir Bux to the legal heirs of the deceased by way of Diyat. In the first instance Amir Bux moved Provincial Government for the commutation of his death sentence but his request was turned down. Therefore, Amir Bux filed clemency appeal before the President of Pakistan under Article 45 of the Constitution of Islamic Republic of Pakistan, 1973. During the pendency of the appeal black warrants were issued by the concerned Court for the execution of Amir Bux. In view of the above facts and circumstances, this Court stayed execution of the death sentence of Amir Bux till final decision of his clemency petition by the President of Pakistan.
12. ' The petition of Amir Bux came up for regular hearing before another Division Bench of this Court on 4th March, 1985 (PLD 1985 Kar. 610). The facts of reported case Amir Bux (ibid) discloses that during the pendency of petition before the High Court clemency petition was rejected by C.M.L.A.
13. Secretariat on the basis of opinion of Ministry of Law. It was held by this Court that the rejection of clemency petition was not proper at the level of C.M.L.A. Secretariat. It was further held that the appeal could only be disposed of by the President himself in exercise of jurisdiction vested in him and that the disposal of petition at Secretariat level was not maintainable.
14. ' An preservation was, therefore, made that the authorities concerned will not omit to place clemency petition before the President for his perusal and disposal before the convict was executed by the Jail Authorities. It was thus held that the exercise of powers under Article 45 of the Constitution by the President were discretionary and in nature of sovereign prerogative and that such powers, could not be controlled by Courts nor Court could compel exercise of such powers by President. The above-cited petition was ultimately dismissed by this Court.
15. ' Reverting to the facts of the present petition we find that one petition has already been considered by President and it has been dismissed. The consideration for admitting the petition of Amir Bux in the cited judgment is not available to the present petitioner, firstly, for the reason that in the cited case clemency petition was dismissed by Provincial Government only and the second petition to the President was not considered at all. Secondly in the cited case the parties had compromised and blood money was paid. In the present case the petitioner has not contended that the legal heirs of the deceased have compromised with the petitioner or any blood money has been paid to the legal heirs of the deceased nor they have pardoned the petitioner.
16. ' Resultantly the petition merits no consideration and stands dismissed in limine alongwith listed application.